Coles Group Supply Chain Pty Ltd
[2019] FWCA 892
•12 February 2019
| [2019] FWCA 892[Note: a correction has been issued to this document] |
| FAIR WORK COMMISSION |
| decision |
Fair Work Act 2009
s.185—Enterprise agreement
Coles Group Supply Chain Pty Ltd
(AG2018/4758)
COLES EASTERN CREEK CDC ENTERPRISE AGREEMENT 2018
| Storage services | |
| Vice President Hatcher | SYDNEY, 12 FEBRUARY 2019 |
Application for approval of the Coles Eastern Creek CDC Enterprise Agreement 2018.
An application has been made for approval of an enterprise agreement known as the Coles Eastern Creek CDC Enterprise Agreement 2018 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (FW Act) by Coles Group Supply Chain Pty Ltd (CGSC). The Agreement is a single enterprise agreement. The application was accompanied by a Form F17 statutory declaration made by Gregory John Seve, Operations Manager, on 24 August 2018.
The National Union of Workers (NUW) filed a Form F18 statutory declaration made by Sharon Morris, the President of the NSW Branch, on 24 August 2018 which relevantly stated that the NUW was a bargaining representative for the Agreement, supported its approval, and gave notice pursuant to s 183 of the FW Act that it wished to be covered by the Agreement.
The Australasian Meat Industry Employees Union (AMIEU) also filed a Form F18 declaration made by Diana Sully, Organiser at the AMIEU, on 28 August 2018 which stated that the AMIEU was a bargaining representative for the Agreement, supported its approval, and gave notice pursuant to s 183 of the FW Act that it wished to be covered by the Agreement.
On 24 December 2018, I caused a letter to be issued to CGSC identifying six issues and concerns with the application. They were as follows:
Despite the answer given at Q2.9 on the Form F17 statutory declaration of Mr Seve, the application was lodged on 28 August 2018, more than 14 days after the Agreement was made on 10 August 2018. An extension of time is therefore required under s 185(3)(b) of the Fair Work Act 2009 (FW Act). It is necessary for the Commission to be provided with details of the circumstances the Commission should take into account in deciding if it is fair to extend the time for lodging the application.
Section 196 of the FW Act requires that the Commission must be satisfied that when an employee covered by the Agreement is covered by a modern award that defines or describes the employee as a shiftworker for the purposes of the NES, the Agreement also defines or describes the employee as a shiftworker for the purposes of the NES. Clause 26.4 of the Storage Services and Wholesale Award 2010 (SSW Award) contains a definition of shiftworker for the purpose of the NES. That definition appears to be potentially applicable to some employees covered by the Agreement. However there is no corresponding definition of shiftworker in the Agreement.
Clause 11.4(b) of the SSW Award provides that casual work is to be paid for at the ordinary wage rate with an addition of 25%. Clause 24.1 of the SSW Award provides that overtime is payable at the rate of time and a half for the first two hours and double time after that. Clause 24.5(a)(i) of the SSW Award provides that all time worked on a Saturday must be paid for at the rate of time and a half, and cl 24.5(b)(i) provides that all time worked on a Sunday must be paid for at the rate of double time. Although cl 4.2.1 of the Agreement provides for the same overtime penalties as the SSW and cl 3.6 provides for the same level of weekend penalties, cl 4.1.5(c) of the Agreement provides that the casual loading is not payable to non-Storeworker casual employees on overtime, and cl 4.1.5(d) provides that the casual loading is also not payable to non-Storeworker casual employees working ordinary hours on Saturday or Sunday. This may mean that non-Storeworker casual employees who work significant amounts of overtime and/or who work wholly or primarily on Saturdays and Sundays may not be better off overall under the Agreement than under the SSW Award.
Clause 22.2 of the SSW Award provides that ordinary hours will be worked between 7.00am and 5.30pm, but that the spread of hours may be extended by up to one hour at either end of the spread by majority agreement. Clause 24.1 of the SSW Award provides that all time worked outside of ordinary hours shall be paid at overtime penalty rates, and cl 25.4 provides for an early morning shift allowance of 12.5% and an afternoon shift allowance of 15%. Cl 4.1.2(c) of the Agreement provides for a span of hours for full-time employees of 5am to 8pm. This may mean that day workers who commence work before 6.00am or finish work after 6.30pm may not be better of overall under the Agreement than under the SSW Award.
Clause 30 of the SSW Award (as at the date the application was lodged) provided for family and domestic violence leave. The Agreement contains no provision for family and domestic violence leave. This may mean that any current or prospective employees who have been the victim of family and domestic violence may not be better off overall under the Agreement than under the SSW Award.
The entitlement to Personal/Carer’s Leave in cl 5.2.1.1 of the Agreement is not expressed as accruing progressively and therefore may exclude the NES entitlement in s 96 of the FW Act contrary to s 55(1) of the FW Act.
The first issue raised was based on an error in the Commission’s records, and in fact the application for the approval of the Agreement was lodged within 14 days of the Agreement having been made. In respect of the other matters raised, CGSC responded in correspondence dated 11 January 2019 as follows:
· With regards to item (3), CGSC submitted that an undertaking was not required since the overtime hourly rates for casual employees payable in accordance with the Agreement exceed the highest classified Award rates. It provided financial modelling to demonstrate this.
· With regards to items (2), (4), (5) and (6), CGSC addressed these concerns by way of undertakings.
I am satisfied with CGSC’s response to item (3) and accordingly it is not necessary for me to deal with that matter any further. In respect of items (2), (5) and (6), the undertakings proposed by CGSC would satisfactorily address my concerns.
With respect to item (4), CGSC provided modelling which showed that only employees classified as Storeworkers could conceivably not be better off overall. I accept that modelling is correct. With respect to Storeworkers, the following undertaking was proposed:
“(2) Coles Group Supply Chain Pty Ltd undertakes that:
…
(b) it will not roster employees classified as Storeworkers under the Agreement to work ordinary hours between 5am and 8pm, Monday to Friday.
…”
The intended effect of the above undertaking was unclear, so on 16 January 2019 I conducted a teleconference, attended by CGSC, the AMIEU and the NUW, in order to clarify its meaning. It was explained to me at the teleconference that CGSC did not employ any person in the classification of Storeworker and did not intend to in the future. In light of that clarification, CGSC agreed to modify the undertaking so that it read as follows:
“(2) Coles Group Supply Chain Pty Ltd undertakes that:
….
(b) it will not engage employees classified as Storeworkers under the Agreement throughout the term of the Agreement.
….”
That makes it clear that no employee will not be better off overall as a result of cl 4.1.2(c) of the Agreement.
A copy of the undertakings is attached as Annexure A. I accept the undertakings and am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The views of the bargaining representatives were sought concerning these undertakings, and no objection or concern was expressed.
On the basis of the material contained in the application, the accompanying statutory declaration, the further information provided by CGSC and the undertakings attached as Annexure A, I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval have been met.
As earlier stated, the NUW and the AMIEU have given notice under s 183 of the FW Act that they want the Agreement to cover them. In accordance with s 201(2) I note that the Agreement covers the NUW and the AMIEU.
The Agreement is approved and, in accordance with s 54 of the Act, will operate 7 days from the date of approval. The nominal expiry date of the Agreement is 4 years from the date of approval.
VICE PRESIDENT
Printed by authority of the Commonwealth Government Printer
<AE501510 PR704847>
Annexure A
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